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1. The accused person has moved this Court seeking to be admitted to bail pending trial pursuant to Article 49(1)(h) of the Constitution, which guarantees every accused person the right to be released on bond or bail on reasonable conditions unless there exist compelling reasons that would necessitate their continued detention.
2. This Court is therefore required to examine whether the prosecution, which opposes the application, has discharged its constitutional burden of demonstrating such compelling reasons, bearing in mind that bail is a right and its limitation must be justified through clear, cogent and admissible evidence.
3. In the present matter, although the prosecution sought for and was granted time for the investigating officer to file an affidavit formally opposing bond, the prosecution failed to file the affidavit or other formal evidence in opposition to the application.
4. Ms. Muema the learned Prosecution Counsel now solely on statements contained in the pre-bail report to the effect that the accused person has no known place of abode and has a history of mental illness and that, owing to that history, he is a flight risk.
5. Ms. Odipo, the learned Counsel for the accused person takes the position that a pre-bail report merely guides the court as to the conditions that may be apt to the bond that the court may grant and the statements made therein are not evidence and remain unproved. Counsel further states that the accused person has a fixed place of abode in Karachuonyo and that he has a brother who resides in Migori who can serve as his contact person.
6. From the record, it is not in doubt that the accused person suffered mental illness but was subsequently treated and a psychiatric report filed that indicates that he is now fit to stand trial.
7. All the above considered, the issue for determination is whether the prosecution has presented reasons that are compelling enough to deny the accused person bond. The accused person seeks admission to bond pending trial pursuant to Article 49(1)(h) of the Constitution, which guarantees the right to be released on reasonable bond or bail terms unless there exist compelling reasons to warrant continued detention.
8. The onus to prove the existence of such compelling reasons lies with the State (see Republic v Kennedy Ochieng Kisakwa [2013] eKLR) and the standard of proof that the reasons presented meet the compelling reasons test is on a balance of probabilities (see Walford Ngugi & 2 others v Republic [2017] eKLR and Republic v Ahmed Mohammed Omar & 6 others [2010] eKLR).
9. As was held in the case of Republic v Fredrick Ole Leliman & 4 others [2016] eKLR the availability of bond and/or bail under Article 49 of the Constitution is not an absolute right. In other words, the right to liberty is among those rights that may be limited under Article 24 of the Constitution, through denial of bond where compelling reasons are provided.
10. In this case, although the prosecution was granted time to file a formal affidavit by the investigating officer, no such affidavit or other sworn evidence was filed. The prosecution therefore presents no evidentiary material beyond the statements contained in the pre-bail report.
11. The prosecution’s position is that the accused allegedly has no known place of abode, has a history of mental illness, and is consequently a flight risk.
12. However, these assertions appear only in the pre-bail report. As the learned defence Counsel correctly submits, a pre-bail report is not evidence. It is a tool meant to guide the court on appropriate bond terms where bail is otherwise merited. The contents of the pre-bail report remain unproved allegations unless supported by independent evidence.
13. On the issue of mental health, the record confirms that the accused previously suffered mental illness but has since been treated and declared fit to stand trial through a psychiatric report on record. Mental illness, particularly one that has been successfully treated, cannot by itself amount to a compelling reason, unless linked by evidence to an inability to comply with court processes or a demonstrated risk of absconding.
14. Furthermore, the accused has provided information indicating he has a fixed place of abode in Karachuonyo, and a brother residing in Migori who can act as a contact person. These claims have not been rebutted by any sworn evidence from the prosecution.
15. In the absence of evidence, sworn or otherwise, to demonstrate likelihood of absconding as a compelling reason, the prosecution has not discharged its burden under Article 49(1)(h) of the Constitution.
16. In the totality of the circumstances, the Court finds that the prosecution has not established any compelling reason to justify the denial of bond, the opposition having been predicated solely upon unverified assertions within the pre-bail report, which stand contradicted by a formal psychiatric evaluation and unsupported by any sworn evidence.
17. Consequently, the accused person is hereby admitted to bond. He may be released on a bond of Ksh.600,000/- with one surety of similar amount.
18. The hearing of the matter will be on 21st April, 2026.
DELIVERED (virtually) DATED and SIGNED this 1st day of December, 2025.
JOE M. OMIDO
JUDGE
APPLICANT: Present.
PROSECUTION COUNSEL: Ms. Muema.
DEFENCE COUNSEL: Ms. Odipo.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
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1. The accused person has moved this Court seeking to be admitted to bail pending trial pursuant to Article 49(1)(h) of the Constitution, which guarantees every accused person the right to be released on bond or bail on reasonable conditions unless there exist compelling reasons that would necessitate their continued detention.
2. This Court is therefore required to examine whether the prosecution, which opposes the application, has discharged its constitutional burden of demonstrating such compelling reasons, bearing in mind that bail is a right and its limitation must be justified through clear, cogent and admissible evidence.
3. In the present matter, although the prosecution sought for and was granted time for the investigating officer to file an affidavit formally opposing bond, the prosecution failed to file the affidavit or other formal evidence in opposition to the application.
4. Ms. Muema the learned Prosecution Counsel now solely on statements contained in the pre-bail report to the effect that the accused person has no known place of abode and has a history of mental illness and that, owing to that history, he is a flight risk.
5. Ms. Odipo, the learned Counsel for the accused person takes the position that a pre-bail report merely guides the court as to the conditions that may be apt to the bond that the court may grant and the statements made therein are not evidence and remain unproved. Counsel further states that the accused person has a fixed place of abode in Karachuonyo and that he has a brother who resides in Migori who can serve as his contact person.
6. From the record, it is not in doubt that the accused person suffered mental illness but was subsequently treated and a psychiatric report filed that indicates that he is now fit to stand trial.
7. All the above considered, the issue for determination is whether the prosecution has presented reasons that are compelling enough to deny the accused person bond. The accused person seeks admission to bond pending trial pursuant to Article 49(1)(h) of the Constitution, which guarantees the right to be released on reasonable bond or bail terms unless there exist compelling reasons to warrant continued detention.
8. The onus to prove the existence of such compelling reasons lies with the State (see Republic v Kennedy Ochieng Kisakwa [2013] eKLR) and the standard of proof that the reasons presented meet the compelling reasons test is on a balance of probabilities (see Walford Ngugi & 2 others v Republic [2017] eKLR and Republic v Ahmed Mohammed Omar & 6 others [2010] eKLR).
9. As was held in the case of Republic v Fredrick Ole Leliman & 4 others [2016] eKLR the availability of bond and/or bail under Article 49 of the Constitution is not an absolute right. In other words, the right to liberty is among those rights that may be limited under Article 24 of the Constitution, through denial of bond where compelling reasons are provided.
10. In this case, although the prosecution was granted time to file a formal affidavit by the investigating officer, no such affidavit or other sworn evidence was filed. The prosecution therefore presents no evidentiary material beyond the statements contained in the pre-bail report.
11. The prosecution’s position is that the accused allegedly has no known place of abode, has a history of mental illness, and is consequently a flight risk.
12. However, these assertions appear only in the pre-bail report. As the learned defence Counsel correctly submits, a pre-bail report is not evidence. It is a tool meant to guide the court on appropriate bond terms where bail is otherwise merited. The contents of the pre-bail report remain unproved allegations unless supported by independent evidence.
13. On the issue of mental health, the record confirms that the accused previously suffered mental illness but has since been treated and declared fit to stand trial through a psychiatric report on record. Mental illness, particularly one that has been successfully treated, cannot by itself amount to a compelling reason, unless linked by evidence to an inability to comply with court processes or a demonstrated risk of absconding.
14. Furthermore, the accused has provided information indicating he has a fixed place of abode in Karachuonyo, and a brother residing in Migori who can act as a contact person. These claims have not been rebutted by any sworn evidence from the prosecution.
15. In the absence of evidence, sworn or otherwise, to demonstrate likelihood of absconding as a compelling reason, the prosecution has not discharged its burden under Article 49(1)(h) of the Constitution.
16. In the totality of the circumstances, the Court finds that the prosecution has not established any compelling reason to justify the denial of bond, the opposition having been predicated solely upon unverified assertions within the pre-bail report, which stand contradicted by a formal psychiatric evaluation and unsupported by any sworn evidence.
17. Consequently, the accused person is hereby admitted to bond. He may be released on a bond of Ksh.600,000/- with one surety of similar amount.
18. The hearing of the matter will be on 21st April, 2026.
DELIVERED (virtually) DATED and SIGNED this 1st day of December, 2025.
JOE M. OMIDO
JUDGE
APPLICANT: Present.
PROSECUTION COUNSEL: Ms. Muema.
DEFENCE COUNSEL: Ms. Odipo.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
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